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ADIMEGWU v. BALA & ANOR (2022)

ADIMEGWU v. BALA & ANOR

(2022)LCN/16064(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, April 08, 2022

CA/A/53/2015

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

MR AMAECHI CYPRIAN ADIMEGWU APPELANT(S)

And

1. DR. JULIUS BALA 2. EBISU INVESTMENT NIGERIA LTD RESPONDENT(S)

 

RATIO

WHETHER OR NOT THE COURT CAN ADJUDICATE ON A MATTER COMMENCED IN VOILATION OF THE LAW

It is settled law that a Court cannot adjudicate upon a suit or action unless instituted in accordance with due process. A Court cannot entertain a suit or action commenced in violation of the law or the Constitution which created a Court or bestows jurisdiction on it over matters it can adjudicate upon. PER IGE, JC.A..

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

Any proceeding conducted without jurisdiction will be rendered null and void ab initio. See
1. CBN VS. RAHAMAIYYA GLOBAL RESOURCES LTD (2020) 4 SCM 1 AT 17 B – C per OKORO, Jsc who said:
“The law is indeed well settled that the issue of jurisdiction is fundamental in any proceeding and consequently raises the question of competence of the Court to adjudicate in the matter. It follows therefore that where a Court is devoid of jurisdiction to entertain a case, such proceedings becomes a nullity ab inito no matter how well conducted and decided. Jurisdiction is the life wire of adjudication which should be determined at the earliest opportunity. See Madukolu Ors v. Nkemdilim & Ors (1962) 2 SCNLR 341, Skenconsult (Nig) Ltd v. Ukey (1981) 1 SC 6, Goldmark (Nig) Ltd v Ibafon Co. Ltd (2012) 10 NWLR (Pt. 1308) page 291, (2012) 5 SCIM 113, Nigerian Union of Road Transport Workers Anor v Road Transport Employers Association of Nigeria Ors (2012) 10 NWLR (Pt. 1307) 170.”
PER IGE, JC.A..

WHETHER OR NOT A CLAIMANT’S WRIT OF SUMMON DETERMINES THE JURISDICTION OF A COURT TO ENTERTAIN A MATTER

In order to determine the jurisdiction of a Court to adjudicate over a matter, the Court seised of the action will examine the Writ of Summons and the Statement of Claim filed. Where the action is commenced by an Originating Summons the Court will scrutinize the reliefs on the Originating Summons and the Affidavit in Support thereof. Though jurisdiction cannot be determined on the Statement of Defence but where there is a Counter-Claim included on the Statement of Defence and being a cross-action the Court will examine the reliefs claimed in the Counter-Claim coupled with the facts relied upon to establish the Counter-Claim. The Counter-Claimant is in the same stead as the Plaintiff in the main action. In other words, the Counter-Claimant is also a Plaintiff in his own right like the Plaintiff in the man action. See:
1. PEOPLES DEMOCRATIC PARTY VS TIMIPRE SYLVA (2012) 13 NWLR (PART 1316) 85 AT 127 per RHODES-VIVOUR, JSC who said:-
“Jurisdiction to entertain a suit is resolved by scrupulous examination of the writ or summons, the Statement or Claim and the reliefs claimed. No other document should be examined. Where the originating process is an originating summons serves as the Plaintiff’s pleadings (Statement or Claim). Jurisdiction would be resolved by examining only the originating summons, the reliefs contained therein and the affidavit relied in support.”
2. THE ATTORNEY-GENERAL OF THE FEDERATION V THE ATTORNEY-GENERAL OF LAGOS STATE (2017) 8 NWLR (PART 1566) 20 AT 46 E – G per PETER-ODILI, JSC who said:-
“To determine whether or not a Court has Jurisdiction, this Court in the case of Olofu v. Itodo (2010) 1B NWLR (Pt. 1225) 545 at page 573 paras. D-F held that:
“Also settled is the principle of law that in order to determine whether a Court before which a matter pends has the jurisdiction to entertain same, the Court has to look at the plaintiff’s statement of claim before it and not the defence put forward by the defendant to the action. The claim of the plaintiff in an action includes the originating summons and the affidavit(s) in support to of same where the action is instituted by originating summons as was decided by this Court in the case of Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1020) 427 at 488 – 589.”
3. ALHAJI AMINO IBRAHIM VS MR FELIX OSIM (1988) LPELR – 1403 (SC) 1 AT 23 per OBASEKI, JSC who said:-
“The law is settled that when an objection is raised that the statement of claim does not disclose a reasonable cause of action, it is the statement of claim that has to be examined and not the statement of defence to ascertain whether there is a reasonable cause of action before the Court. Unless there is a counter-claim, one does not expect to find a cause of action in a statement of defence.
PER IGE, JC.A..

WHETHER OR NOT A COUNTER-CLAIM IS AN INDEPENDENT ACTION

Being a cross-action and the parties in the main action are in a reverse roles, I will examine the reliefs sought on the Counter-Claim and facts pleaded in support of same to determine whether the lower Court has jurisdiction to have adjudicated on the Respondent’s Counter Claim. See:
1. MICHAEL SUNDAY OROJA & ORS VS EBENEZER ILO ADENIYI & ORS (2017) LPELR – 41985 (SC) 1 AT 2122 F – B per RHODES-VIVOUR, Jsc who said:-
“A counter-claim is an independent action where the parties in the main action are in reverse roles. The Plaintiff becomes the defendant, while the defendant becomes the Plaintiff. See Oyegbola vs Esso West Africa (1996) 1 ALL NLR P. 176, Ogbonna vs A.G. Imo State (1992) 1 NWLR (Pt. 220) P. 647. A Counter-Claim does not depend on the outcome of the main claim. Once main claim is concluded in whatever form, be it dismissed or discountenanced, the hearing of Counter-Claim must commence.”
2. MICHAEL SUNDAY OROJA & ORS VS EBENEZER ILO ADENIYI & ORS (2017) LPELR – 41985 (SC) pages 10 – 12 per PETER-ODILI, JSC who held:-
“There is a rich case law on the meaning and purport of a Counter-Claim and I shall have recourse to a few in aid at this point in time. See EFFIOM V. IRONBAR (2000) 1 NWLR (PT. 678) 341 where it was held thus:-
“A counter-claim is an independent action and it needs not relate to or be in any way connected with the Plaintiff’s claim or raise out of the same transaction. It is not even analoguous to the plaintiff’s claim. It need not be an action of the same nature as the original claim. A counter-claim is to be treated for all purposes for which justice requires it to be treated as an independent action. See also the case of OKONKWO V. C. C. B. (2003) FWLR (PT. 154) 457 AT 508, the nature of a counter-claim had been clearly spelt out as follows:-
Counter-claim though related to the principal action is a separate and independent action and our adjectoral law requires that it must be filed separately. The separate and independent nature of a counter-claim is borne out from the fact that it allows the defendant to maintain an action against the plaintiff as profitably as in a separate suit. It is a weapon of defence which enables the defendant to enforce a claim against the plaintiff as effectually as an independent action. As a matter of law, a counter-claim is a cross-action with its separate pleadings, judgments and costs. See also HASSAN V. REGD. TRUSTEES BAPTIST CONVENTION (1993) 7 NWLR (PT. 308) 679 AT 690, wherein it was held that:
“The fate of a counter-claim being an independent action does not depend upon the outcome of the plaintiff’s claim. If the plaintiff’s case is dismissed, stayed or discontinued, the counter-claim may nevertheless be proceeded with.”
PER IGE, JC.A..

THE POSITION OF LAW ON THE INTERPRETATION OF STATUTES

The law is settled beyond peradventure that in the interpretation or construction of any law, subsidiary legislation, instrument, Legal Rules of Court, the statute or law or the document being construed must be given their ordinary grammatical meanings in order to do justice to the parties involved and to respect the real meaning of the law and the intendment of the makers of the law or document which calls for interpretation. The relevant sections or provisions of the law being interpreted must be read as a whole in order not to defeat the purpose or the obvious ends the law is designed to serve particularly when the words of the statute or legislation being construed is clear and unambiguous. See:-
1. PDP VS HON. (DR) HARRY N. ORANEZI & ORS (2018) 7 NWLR (PART 1618) 245 at 257 H TO 258A per M. D. MUHAMMAD, JSC who said:-
“Now, a cardinal principle of interpretation we must not forget, which learned appellant’s counsel however seems to ignore, is that provisions of a statute, an instrument or indeed pleadings should not be read in isolation of the other parts of the statute, instrument or pleadings. In order to determine the intendment of the makers of the statute, instrument or pleadings, same should be read as a whole. Thus a clause in any of these must be construed together and with reference to the context and other clauses in the statute, instrument or pleadings in ensuring the discovery of a consistent meaning of the whole, here, the pleading being considered. See Oyeyemi whole, here, the pleading being considered. See Oyeyemi v. Commissioner for Local Government (Kwara State) (1992) 2 SCNJ 266 at 280; (1992) 2 NWLR (Pt. 226) 661 and Astra Industry Nigeria Limited v. NBCI (1998) 3 SCNJ 97 at 115; (1998) 4 NWLR (Pt. 546) 357.” PER IGE, JC.A..

WHETHER OR NOT PARTIES ARE BOUND BY THE TERMS OF THEIR AGREEMENT OR CONTRACTS

In the template of the law of contract, the law is trite that the parties are strictly bound by the terms and condition or stipulations in the contract or agreement freely entered into by the parties to the contract or agreement. The Court is under a duty to examine and interpret the documents forming the nucleus or fountain of the contract together with correspondences that exchanged between the parties. This will enable the Court discern whether there is a contract that is enforceable between the parties. The Court cannot rewrite the contract for the parties. The rights and obligations of the parties must be discovered from the contract if any emanating between the parties. See GABRIEL ADEKUNLE OGUNDEPO & ANOR VS THOMAS ENIYAN OLUMESAN (2011) 8 NWLR (PART1278) 54 AT 70 C D per FABIYI, JSC who held:
“I need to still point out at this stage that it is not the business or a Court to re-write parties contract for them. The duty of the Court is to interpret the contract as contained in the instrument made by the parties on their own free volition. A Court or record should never accede to the importation of unrelated ‘grey’ areas of the law by a party to prop what is not contained in the instrument made by the parties. See Jadesimi v. Egbe (2003) 10 NWLR (Pt. 827) 1 at 30, Isiyaku v. Zwingina (2003) 6 NWLR (Pt. 817) 560 at 576.” PER IGE, JC.A..

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal Capital Territory High Court of Justice delivered on 1st day of December, 2014 by Honourable Justice A. S. UMAR against the Appellant dismissing his claims as Plaintiff and granting in favour of the Respondents the reliefs sought on their Counter Claim.

By his Amended Statement of Claim filed on 24th day of October, 2013 pursuant to the Order of lower Court made on 7th October, 2013, the Plaintiff now Appellant claimed against the Defendants the following reliefs:-
“WHEREOF THE PLAINTIFF CLAIMS AGAINST THE DEFENDANTS AS FOLLOWS;
i. A declaration that the Plaintiff is entitled to the first option of renewal of his tenancy agreement with the Defendants as a sitting tenant.
ii. A declaration that the Defendants cannot recover possession over House 9, Princess Terrace, 25 Ndjamena Crescent, Wuse 11, Abuja, the subject matter of this suit for the purpose of renting same out to a new tenant without first giving the tenant the opportunity to renew his tenancy.
iii. An Order of Court directing the Defendants to give the Plaintiff the opportunity to renew his tenancy over House 9, Princess Terrace, 25, Ndjamena Crescent, Wuse 11, Abuja at the…
iv. An Order of Court compelling the Defendants to accept the sum of Three Million Naira (N3,000,000.00) as yearly rent for House 9, Princess Terrace, 25, Ndjamena Crescent, Wuse 11, Abuja, for a term commencing from 1st July, 2012, being the current rent contained in the agreement
v. An Order of Court directing the Defendants to pay the Plaintiff the sum of Two Million naira as general damages for breach of the obligations created by the Tenancy Agreement.
vi. An Order of Court compelling the Defendants to pay the Plaintiff the sum of One Million Naira (N1,000,000.00) being solicitors fees for this suit.
vii. Cost of this suit.
And any other of further order as this honourable Court may deem fit to make in the circumstances of this case.”

The 1st and 2nd Respondents included Counter-Claim in their 1st and 2nd Defendants’ Amended Statement of Defence wherein they sought against the Plaintiff/Appellant the following reliefs:-
“1. The 1st and 2nd Defendants hereby adopt all the averments contained in paragraphs 1 – 35 of the Statement of Defence as their statement of claim therein.
2. The 1st and 2nd Defendants/Counter-Claimants aver that even after the termination of the tenancy agreement, the Plaintiff is yet to move out of the property in question and thus constitutes an obstacle to the Defendants’ business plans and means of livelihood.
3. Whereof the 1st and 2nd Defendants/Counter-Claimants, claim against the Plaintiff as follows:
(a) A declaration of this Honourable Court that the Plaintiff’s Tenancy has come to an end by effluxion of time.
(b) A declaration that the Plaintiff is now a Statutory Tenant and should pay mesne profit to the 1st and 2nd Defendants from July 1, 2012 until possession is granted to the 1st and 2nd Defendants by this Honourable Court.
(c) AN ORDER of this Honourable Court directing the Plaintiff to pay to the 1st and 2nd Defendants, the sum of N250, 000.00 (Two Hundred and Fifty Thousand Naira) for each month outside the tenancy agreement that the Plaintiff has stayed in the property in question being mesne profit for his continued unauthorized stay on the property.
(d) AN ORDER of this Honourable Court directing the Plaintiff to restore the property to its initial condition (prior to the commencement of the Tenancy Agreement) and deliver immediate vacant possession of the said property to the 1st and 2nd Defendants the tenancy having come to an end by effluxion of time.
(e) General damages of N10, 000, 000.00 (Ten Million Naira) against the Plaintiff for breach of contract.
(f) The cost of this suit which is N1,000,000.00 (One Million Naira) only, as reflected on the 1st Defendant’s Solicitor’s Bill of Charges in respect of this matter.”

Pleadings were duly exchanged and the matter proceeded to trial at the end of which the learned trial Judge gave considered judgment on the 1st December, 2014 as aforesaid and found against the Appellant as follows:
“In view of the forgoing stated so far and having holistically reviewed the case of the parties, it is my unshakeable findings that the plaintiff’s case has no foundation or basis upon which this Court can find or make any order in his favour. It is also evidently and abundantly clear that the plaintiff is not entitled to his claims having not established any of his claims. It is popular saying that “something cannot be placed on nothing and it is expected to stand”
Where after trial the plaintiff’s case failed to disclose any reasonable cause of action the proper step for the Court to take in the circumstance is to dismiss the suit in some cases with commensurate cost. In the circumstances of this case, it is my view that the Plaintiff’s suit lacks merit and deserves to be dismissed. It is hereby accordingly dismissed.”

On the Counter-Claim of the Respondents, the learned trial Court found on page 288 of the record as follows:-
“I hereby give judgment to the defendant/counter-claimant as thus:
1. It is declared that the plaintiff’s tenancy has come to an end.
2. The plaintiff is ordered to deliver vacant possession of House 9 Prince Terrace, 25, Ndjamena Crescent Wuse 2, Abuja to the Defendant/counter-claimant.
3. The plaintiff is ordered to pay the defendant the sum of N250, 000 (two hundred and fifty thousand) for each month outside the tenancy agreement that the plaintiff has stayed in the property in question being mesne profit for his continued unauthorized stay on the property.
4. The plaintiff is hereby ordered to restore the property to its initial condition (Prior to the commencement of the tenancy agreement)
5. Cost for the counter-claim against the plaintiff assessed N20, 000 (Twenty Thousand Naira) Only.
counter-claim succeed.
This is the judgment of this Court.”

The Appellant was aggrieved by the decision of the lower Court and has by his Notice of Appeal filed on 1st December, 2014 appealed to this Court on six (6) grounds of appeal which without their particulars are as follows:-
“2. PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF:
The entire decision.
3. GROUNDS OF APPEAL
GROUND 1
The trial Court erred in law when the Honourable Court assumed jurisdiction to hear a claim on recovery of premises when the condition precedent for commencing same was not met.
GROUND 2
The trial Court erred when the Honourable Court entered judgment for the Respondents for recovery of premises without service of a valid quit notice and without any express agreement between the parties negating same.
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GROUND 3 
The learned trial Judge erred in law when His Lordship entered judgment for the Respondents without service of statutory seven days’ notice of owner’s intention to recover possession.
GROUND 4
The trial Court erred in law when it entered judgment for a claim for recovery of premises on the ground that the tenancy expired whereas the case was fought on the ground that valid quit notice was served on the Appellant.
GROUND 5
The trial Court erred in law when it entered judgment for a claim for recovery of premises where the reason the Respondents sought to recover possession was to give the apartment to another tenant who is willing to pay a higher rent.
GROUND 6
The learned trial Judge erred in law when the Honourable Judge wrongfully evaluated the evidence adduced before the Honourable Court and reached wrong conclusion thereby occasioning miscarriage of Justice.”

The Appellant’s Brief of Argument dated 20th September, 2021 was filed on 21st September, 2021 while the Respondents’ Brief of Argument was filed on 26th October, 2021. The Appellant’s Reply on Points of Law was filed on 7th December, 2021 but deemed filed on 17th January, 2022.

The appeal was heard on 17th January, 2022 when the learned Counsel to the parties in this appeal adopted their respective Briefs of Argument.

The learned Counsel to the Appellant LILIAN OJIMMA, ESQ nominated five (5) issues for determination as follows:-
i. Whether the trial Court was justified in dismissing the preliminary objection raised by the Appellant challenging the jurisdiction of the trial Court based on the incompetence of the Respondents’ counter-claim for failure to fulfill the condition precedent for recovery of premises. (Ground 1).
ii. Whether, having regard to the nature of a counter-claim, which is an independent suit, the trial Court was right to enter judgment for the Respondents for recovery of possession without fulfilling the condition precedent of service of statutory notices. (Grounds 2 and 3).
iii. Whether the Honourable trial Court was justified in reaching a finding that the Appellant’s tenancy had expired and therefore not desiring a notice to quit contrary to the case of the Respondents that they served the Appellant with the relevant notices. (Ground 4).
iv. Whether the Respondent’s desire to rent the demised premises to another prospective tenant who was wiling to pay a higher rent is one of the recognized grounds for recovery of premises by a Landlord (the Respondents) from their tenant (the Appellant). (Ground 5)
v. Whether the judgment of the Honourable Court is not at variance with the evidence before the Court and if yes, whether the Appellant did not discharge the evidential burden on him to be entitled to judgment. (Ground 6)”

The learned Counsel FRANCIS ORONSAYE, ESQ who settled the Respondents’ Brief of Argument also distilled five (5) issues which are:-
“i. Whether the trial Court was justified in dismissing the preliminary objection raised by the Appellant challenging the jurisdiction of the trial Court? (Distilled from ground 1 of the Notice of Appeal).
ii. Whether having regard to the facts and circumstances of this case, the Respondents have fulfilled the condition precedent in instituting the counter-claim? (Distilled from grounds 2 and 3 of the Notice of Appeal).
iii. Whether having regard to the facts and circumstances of this case, the Appellant’s tenancy had expired and must be determined by statutory notices? (Distilled from ground 4 of the Notice of Appeal).
iv. Whether the Respondent’s desire to rent the demised premises to other tenant other than the Appellant is valid in law? (Distilled from ground 5 of the Notice of Appeal).
v. Whether the judgment of the trial Court is at variance with the evidence adduced before, the Court (Distilled from ground 6 of the Notice of Appeal).”

The issues raised by the Respondents are coterminous with the issues nominated by the Appellants for determination of the appeal.

I will utilize the issues distilled by the Appellant in consideration of the appeal. I will take issues 1, 2 and 3 together since they relate to jurisdiction of the lower Court to entertain the action herein.

ISSUES 1, 2 AND 3
i. Whether the trial Court was justified in dismissing the preliminary objection raised by the Appellant challenging the jurisdiction of the trial Court based on the incompetence of the Respondents’ counter-claim for failure to fulfill the condition precedent for recovery of premises. (Ground 1).
ii. Whether, having regard to the nature of a counter-claim, which is an independent suit, the trial Court was right to enter judgment for the Respondents for recovery of possession without fulfilling the condition precedent of service of statutory Notices. (Grounds 2 and 3).
iii. Whether the Honourable trial Court was justified in reaching a finding that the Appellant’s tenancy had expired and therefore not desiring a notice to quit contrary to the case of the Respondents that they served the Appellant with the relevant notices. (Ground 4).

On issue 1, the learned Counsel to the Appellant LILIAN OJIMMA, ESQ., submitted that the lower Court was not justified in dismissing the Preliminary Objection filed against the Counter-Claim of the Respondents to the effect that the lower Court had no jurisdiction to entertain the Respondents’ Counter-Claim on the ground that the Appellant was neither served a proper notice to quit nor Notice of Owner’s Intention to recover possession. He relied on Exhibit 1 contained on pages 19 – 24 of the record and Section 8(1) of the Recovery of Premises Act Cap 544 LFN 1990 which he said provides for length of notice to be issued and in particular that for determination of yearly tenancy there must be half year’s notice served on the tenant by the landlord. He relied on the case of SAMUEL IWUAGOLU V MR. CHIZEA PASCAL AZYKA (2007) 5 NWLR (PART 1028) 613 AT 630 C – E. To the learned Counsel to the Appellant the Counter-Claim did not fulfil the condition precedent required for its filing and as such the lower Court lacked jurisdiction. He analysed the law concerning institution of a Counter-Claim which she said is an independent action relying on the case of OGBONDA V EKE (1998) 10 NWLR (PART 568) 73. He accused the lower Court of holding that the Appellant was a tenant at will and in this case a tenant who holds over is at the mercy of the landlord. She argued that Section 7 of Recovery of Premises Act Abuja LFN 1990 is very strict relying on the case of AFRICAN PETROLEUM V OWODUNNI (1991) 8 NWLR (PART 210) 391. She further contended that failure to serve necessary Notice of Owners Intention to recover possession rendered the Counter Claim incompetent and thus robbing the lower Court of jurisdiction. She relied on the cases of MADUKOLU V NKEMDILIM (1962) 2 SCNLR (SIC) and GAMBARI V GAMBARI (1990) 5 NWLR (PART 152) AT 589. He submitted that the Tenancy Agreement Clause 4 thereof between the parties which the lower Court relied upon to hold that no notice was necessary before the Respondents could commence the Counter-Claim was not supported upon proper construction of the agreement. He urged the Court to resolve issue 1 in favour of the Appellant and strike out the Respondents’ action.

On issue 2 as to whether the trial Court was right in entering judgment for the Respondents for recovery of possession without fulfilling the condition precedent of Service of Statutory Notices, LILIAN OJIMMA, ESQ for the Appellant submitted that the lower Court was wrong in that the Counter-Claim was commenced without fulfilling the statutory requirement of notice to quit and 7 days Notice of Owners Intention to recover possession. On that ground she submitted that the Counter-Claim was incompetent and ought to have been dismissed. The arguments under issue 1 were substantially repeated.

The learned Counsel to the Appellant argued in the alternative that even if it is conceded that Clause 4(1) of Exhibit 1 had reduced the length of notice to quit to 60 day as against six (6) months provided by the statute as posited by the lower Court, it remains to be investigated whether the Respondents had validly served the 60 days Notice on the Appellant. Learned Counsel contended that no notice was served on the Appellant. That the provision contracts out the requirement of notice must be expressly stated. That the Clause provides that “tenancy shall absolutely be re-determined” and that the words re-determined and determine are not synonymous. He relied on the case of AFRICAN PETROLEUM V OWODUNNI (SUPRA) and ISIYAKU VS ZWINGINA (2003) 6 NWLR (PART 817) 560. She insisted that the Appellant was entitled to six months’ notice to quit but was not served on him. He also relied on the Section 7 of the Recovery of Premises Act Cap 544 LFN 1990. He submitted that where a statute places obligation on a party, the performance of such act becomes mandatory and not discretionary. He relied on the cases of:
1. KAYODE V STATE (2008) 1 NWLR (PART 1068) 281;
2. OJU LG V INEC (2007) 14 NWLR (PART 1054) 242;
3. OKEREKE V YAR’ADUA (2008) 12 NWLR (PART 1100) 95 and
4. NWANKWO V YAR’ADUA (2010) 12 NWLR (PART 1209) 518.

He urged the Court to dismiss the Counter-Claim as incompetent for failure on the part of the Respondents to serve necessary Quit Notice and Notice of Owner’s Intention to Recover Possession.

Under issue 3 as to whether the lower Court was right in holding that the Appellant’s Tenancy had expired and therefore not deserving a Notice to Quit, the Learned Counsel to the Appellant submitted that the trial Court was wrong because according to the Appellant, the Respondents fought their case on the basis that they served notice on the Appellant. That the finding runs counter to the case of the Respondents who claimed they served requisite notice.

It is her submission that cases are fought on pleadings and issues joined by the parties and that is what a Court would consider. That in this case parties joined have joined issues on service or non-service of statutory notices and led evidence to demonstrate their respective position. She stated that the lower Court abandoned the case of the parties as joined and “reached a finding that the tenancy of the Appellant had expired and required no Notice to terminate same.”

That the implication is that Court made case out for the Respondents and that it amounts to denial of fair hearing to the Appellant. He relied on pages 8 – 9 of the Additional Record of Appeal containing the evidence of DW2.

She argued, it was wrong for the lower Court to raise issue of the expiration of the tenancy suo motu without affording the parties opportunity to address the lower Court on it in that the tenancy was still running when the suit was commenced. He relied on the case of NWOBOSI VS ACB (1995) 6 NWLR (PT. 404) 658. That the issue raised suo motu was not borne out of the pleadings. He urged the Court to so hold.

Responding to the above submissions under issues 1, 2 and 3, the learned Counsel to the Respondents FRANCIS ORONSAYE, ESQ submitted that the learned trial Judge rightly dismissed the Appellant’s Preliminary Objection challenging the competence of lower Court to entertain the Counter-Claim in that it was clothed with the requisite jurisdiction. He conceded that jurisdiction is the authority a Court has to entertain any matter. He relied on the cases of HON. COMMISSIONER FOR EDUCATION AKWA IBOM STATE & ORS VS HARRIKOK ENGINEERING CO. LTD & ANOR (2013) LPELR – 21399 per OTISI, JCA and AIME NIG. LTD VS HB LTD (2021) LPELR – 54874. That it was clear that the lower Court has jurisdiction in the matter contrary to what he described as erroneous contention of the Respondents to the effect that condition precedent to the exercise of jurisdiction by the Court which was the issuance of statutory notices was not met. He too relied on Section 8(1) of the Recovery of Premises Act Cap 544 Laws of the Federation of Nigeria 1990 to submit that the parties in this matter agreed on the Notice to be given in determining the tenancy. He relied on page 129 of the record of appeal. According to him the clause in the agreement between the parties contained on page 129 of the record is devoid of any ambiguity and that where the tenant fails to observed or breach any of the terms or covenants contained in the agreement the Landlord shall only give the tenant 60 days notice. He relied on pages 55 – 57 and 163 of the record of appeal to show that the Appellant breached the Tenancy Agreement and page 164 of the record of appeal to show that the Appellant was served Notice of Termination of the Tenancy as contained on page 164 of the record which learned Counsel to the Respondent contended gave six months Notice which he said is far in excess of 60 days contained in the Tenancy Agreement. That parties are bound by their agreement and that lower Court rightly assumed jurisdiction. He relied on the case of ASUOTU VS TRIARCH NIG. LTD (2019) LPELR – 48181 per ABOKI, JCA (now JSC).

On the cases relied upon by the Appellant’s learned Counsel in contending that the lower Court lacked jurisdiction over the Counter Claim, the Respondents’ learned Counsel believes the argument is erroneous and misconceived in that the facts are not the same with the facts of this case. He relied on the case of FELIX GEORGE & CO LTD VS AFINOTAN & ORS (2014) LPELR – 22982.

He reiterated that Section 8 of the Recovery of Premises Act stipulating issuance of the notices on Tenant is subject to express provisions or stipulation agreed by the parties and that parties are bound by it.

On issues 2 and 3 of the issues raised by the Appellant, the learned Counsel to the Respondents posited that they having fulfilled the conditions precedent to institute the Counter-Claim at the trial Court. He repeated his submission under issue one to the effect that Appellant erroneously contended that the Counter-Claim of the Respondents is incompetent on the ground that there was failure to serve the Appellant the Statutory Notice to Quit and 7 days Owners Intention to Recover Possession. He repeated his argument on the effect of Section 8 of the Recovery of Premises Act which he said is subject to the terms or agreement between the parties relying again on FELIX GEORGE & CO. LTD VS AFINOTAN & ORS SUPRA and page 29 paragraph 1 of the record. That parties are bound by their agreement and the Court will not imply the issuance of Statutory Notice where there is express agreement between the parties. He relied on Section 169 of the Evidence Act 2011.

According to learned Counsel to the Respondents, the Appellant has conceded to the fact that an express agreement can take away the statutory notices provided for by the Recovery of Premises Act when the Appellant relied on the case of A.P. V OWODUNNI (1991) 8 NWLR (PT. 210) 391 and ISIYAKU VS ZWINGINA (2003) 6 NWLR (PT. 817) 560. He submitted that the cases are unfavourable to the Appellant’s position. He relied on the agreement on pages 172 – 177 of the record of appeal which Respondents’ learned Counsel stated the lower Court relied upon in taking its decision.

Learned Counsel also drew attention to the Tenancy Agreement and that both parties conceded that the tenancy has actually expired. He relied on pages 163 – 173 of the record of appeal. He stated that the tenancy is a fixed tenancy relying on pages 163 to 173 of the record of appeal.

The learned Counsel to the Respondents argued “the question that flows then, is whether in the circumstances of this fixed tenancy created by the parties, the Appellant is entitled to Notice to Quit.”

That the Respondents acting on the agreement between them issued the Appellant with the requisite notices under the agreement. He further relied on pages 163 – 173 of the record where, he said, the notices issued were tendered before the trial Court.

Apparently arguing in the alternative, the learned Counsel to the Respondents assumed without conceding that even if valid notices were not issued by the Respondents as claimed by the Appellant, he submitted that the failure to serve requisite notices is not fatal to the Respondents case. He relied on the case of PILLARS (NIG) LTD VS DESBORDES & ANOR (2021) LPELR – 55200 (SC).

He therefore submitted that the Counter-Claim by which the Respondents as Defendants made their claim for recovery of possession qualifies as distinct action on its own capable of survival, even where the main action fails or is withdrawn. That whatever irregularity was perceived to have occurred in Service of Notice has been cured the moment the Respondents filed the Counter-Claim.

The Respondents’ learned Counsel also stated and informed the Court that the Appellant who is now asking the Court to determine whether tenancy of a property in which he has since ceased to be in possession, was validly determined. That the question to be asked is, should the honourable Court go ahead to pronounce that the tenancy was not properly determined? He submitted it has become academic and no utilitarian value will be benefited, relying on the case of LAWSON V OKORONKWO & ORS (2018) LPELR – 46356 (SC). He urged the Court to resolve the above issues in Respondents’ favour.

The Appellant filed Appellant’s Reply on Points of Law on 17/12/2021 which was deemed filed on 17/1/22. The said reply brief is laden with some repetition of submissions already made in the main brief. However, some new points raised by the Respondents have been addressed.

On whether the agreement of the parties as to length of Notice a Tenant is entitled and whether Notice is not required as per Section 8 of Recovery of Premises Act, the Learned Counsel to the Appellant agreed that parties can contract freely on the length of Notice to be issued for purposes of determining the tenancy. However, according to the Appellant’s learned Counsel after the determination of the tenancy, there is still the requirement to serve the tenant seven days’ notice, which the Respondents have not addressed.

On the 60 days Notice contained in the agreement, learned Counsel to the Appellant stated that, that will not negate nor cancel the agreement that two separate notices must be served on the Appellant in the absence of which lower Court would still lack jurisdiction.

That by effluxion of time or by notice to determine tenancy, the tenant becomes tenant at will, deserving 7 days owners Intention to Recover Possession after which the landlord can proceed to Court for recovery of possession or premises. He relied on the cases of IHEANACHO V UZOCHUKWU (1997) 2 NWLR (PART 487) 257 AT 268 – 270 and ONI V. DADA (1957) SCNLR 258.

On whether the suit is academic, the learned Counsel to the Appellant stated that when the Respondents carried out illegal execution evicting the Appellant, the Appellant immediately approached the lower Court and the lower Court set aside the illegal execution of which the Respondents appealed and have not taken any step in the prosecution of the appeal.

That the submission of Respondents’ Counsel to the effect that the appeal herein is academic is erroneous and mischievous.

RESOLUTION OF ISSUES 1, 2 AND 3
Now the bone of contention under issue 1 is that from the circumstances of this case, the Respondents did not fulfil the conditions precedent in instituting the Counter-Claim and as such the Counter-Claim was incompetent and by extension, the lower Court lacked the jurisdiction to entertain the Counter-Claim.

It is settled law that a Court cannot adjudicate upon a suit or action unless instituted in accordance with due process. A Court cannot entertain a suit or action commenced in violation of the law or the Constitution which created a Court or bestows jurisdiction on it over matters it can adjudicate upon.

Any proceeding conducted without jurisdiction will be rendered null and void ab initio. See
1. CBN VS. RAHAMAIYYA GLOBAL RESOURCES LTD (2020) 4 SCM 1 AT 17 B – C per OKORO, Jsc who said:
“The law is indeed well settled that the issue of jurisdiction is fundamental in any proceeding and consequently raises the question of competence of the Court to adjudicate in the matter. It follows therefore that where a Court is devoid of jurisdiction to entertain a case, such proceedings becomes a nullity ab inito no matter how well conducted and decided. Jurisdiction is the life wire of adjudication which should be determined at the earliest opportunity. See Madukolu Ors v. Nkemdilim & Ors (1962) 2 SCNLR 341, Skenconsult (Nig) Ltd v. Ukey (1981) 1 SC 6, Goldmark (Nig) Ltd v Ibafon Co. Ltd (2012) 10 NWLR (Pt. 1308) page 291, (2012) 5 SCIM 113, Nigerian Union of Road Transport Workers Anor v Road Transport Employers Association of Nigeria Ors (2012) 10 NWLR (Pt. 1307) 170.”

2. MR. A. ARUEZE & ORS V CHIEF M. A. NWAUKONI (2019) 5 NWLR (PART 1666) 469 AT 480 B – D per BAGE, JSC who said:-
“I will only need to add, the position of this Court, on its competency to proceed with any matter placed before it. See: – the celebrated case of Madukolu and Ors v. Nkemdilim (1962) 1 All NLR 587 at 594, (1962) 2 SCNLR 341 at 348, paras. E-G. Bairamian F. J. (as he then was) stated the principles which have been accepted in successive case in this Court. “A Court is competent”; he said, when:-
It is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another and the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its Jurisdiction and the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however, well conducted and decided, the defect is extrinsic to the adjudication.” Where it is thus shown that the lower Court lacks the jurisdiction to adjudicate on a cause or matter an Appellate Court will declare the relief and orders made therein a nullity. See ALHAJI JIBRIN BALA HASSAN VS. DR. MUAZU BABANGIDA ALIYU & ORS (2010) 11 SCM 69 AT 93 E per ONNOGHEN, JSC, later (CJN, Rtd.) who said:
“It is trite that jurisdiction is very fundamental to adjudication and that where a Court lacks the competence to hear and determine a matter but proceeds to do so, an appellate Court is duty bound to nullify a decision resulting therefrom.”

In order to determine the jurisdiction of a Court to adjudicate over a matter, the Court seised of the action will examine the Writ of Summons and the Statement of Claim filed. Where the action is commenced by an Originating Summons the Court will scrutinize the reliefs on the Originating Summons and the Affidavit in Support thereof. Though jurisdiction cannot be determined on the Statement of Defence but where there is a Counter-Claim included on the Statement of Defence and being a cross-action the Court will examine the reliefs claimed in the Counter-Claim coupled with the facts relied upon to establish the Counter-Claim. The Counter-Claimant is in the same stead as the Plaintiff in the main action. In other words, the Counter-Claimant is also a Plaintiff in his own right like the Plaintiff in the man action. See:
1. PEOPLES DEMOCRATIC PARTY VS TIMIPRE SYLVA (2012) 13 NWLR (PART 1316) 85 AT 127 per RHODES-VIVOUR, JSC who said:-
“Jurisdiction to entertain a suit is resolved by scrupulous examination of the writ or summons, the Statement or Claim and the reliefs claimed. No other document should be examined. Where the originating process is an originating summons serves as the Plaintiff’s pleadings (Statement or Claim). Jurisdiction would be resolved by examining only the originating summons, the reliefs contained therein and the affidavit relied in support.”
2. THE ATTORNEY-GENERAL OF THE FEDERATION V THE ATTORNEY-GENERAL OF LAGOS STATE (2017) 8 NWLR (PART 1566) 20 AT 46 E – G per PETER-ODILI, JSC who said:-
“To determine whether or not a Court has Jurisdiction, this Court in the case of Olofu v. Itodo (2010) 1B NWLR (Pt. 1225) 545 at page 573 paras. D-F held that:
“Also settled is the principle of law that in order to determine whether a Court before which a matter pends has the jurisdiction to entertain same, the Court has to look at the plaintiff’s statement of claim before it and not the defence put forward by the defendant to the action. The claim of the plaintiff in an action includes the originating summons and the affidavit(s) in support to of same where the action is instituted by originating summons as was decided by this Court in the case of Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1020) 427 at 488 – 589.”
3. ALHAJI AMINO IBRAHIM VS MR FELIX OSIM (1988) LPELR – 1403 (SC) 1 AT 23 per OBASEKI, JSC who said:-
“The law is settled that when an objection is raised that the statement of claim does not disclose a reasonable cause of action, it is the statement of claim that has to be examined and not the statement of defence to ascertain whether there is a reasonable cause of action before the Court. Unless there is a counter-claim, one does not expect to find a cause of action in a statement of defence.

Being a cross-action and the parties in the main action are in a reverse roles, I will examine the reliefs sought on the Counter-Claim and facts pleaded in support of same to determine whether the lower Court has jurisdiction to have adjudicated on the Respondent’s Counter Claim. See:
1. MICHAEL SUNDAY OROJA & ORS VS EBENEZER ILO ADENIYI & ORS (2017) LPELR – 41985 (SC) 1 AT 2122 F – B per RHODES-VIVOUR, Jsc who said:-
“A counter-claim is an independent action where the parties in the main action are in reverse roles. The Plaintiff becomes the defendant, while the defendant becomes the Plaintiff. See Oyegbola vs Esso West Africa (1996) 1 ALL NLR P. 176, Ogbonna vs A.G. Imo State (1992) 1 NWLR (Pt. 220) P. 647. A Counter-Claim does not depend on the outcome of the main claim. Once main claim is concluded in whatever form, be it dismissed or discountenanced, the hearing of Counter-Claim must commence.”
2. MICHAEL SUNDAY OROJA & ORS VS EBENEZER ILO ADENIYI & ORS (2017) LPELR – 41985 (SC) pages 10 – 12 per PETER-ODILI, JSC who held:-
“There is a rich case law on the meaning and purport of a Counter-Claim and I shall have recourse to a few in aid at this point in time. See EFFIOM V. IRONBAR (2000) 1 NWLR (PT. 678) 341 where it was held thus:-
“A counter-claim is an independent action and it needs not relate to or be in any way connected with the Plaintiff’s claim or raise out of the same transaction. It is not even analoguous to the plaintiff’s claim. It need not be an action of the same nature as the original claim. A counter-claim is to be treated for all purposes for which justice requires it to be treated as an independent action. See also the case of OKONKWO V. C. C. B. (2003) FWLR (PT. 154) 457 AT 508, the nature of a counter-claim had been clearly spelt out as follows:-
Counter-claim though related to the principal action is a separate and independent action and our adjectoral law requires that it must be filed separately. The separate and independent nature of a counter-claim is borne out from the fact that it allows the defendant to maintain an action against the plaintiff as profitably as in a separate suit. It is a weapon of defence which enables the defendant to enforce a claim against the plaintiff as effectually as an independent action. As a matter of law, a counter-claim is a cross-action with its separate pleadings, judgments and costs. See also HASSAN V. REGD. TRUSTEES BAPTIST CONVENTION (1993) 7 NWLR (PT. 308) 679 AT 690, wherein it was held that:
“The fate of a counter-claim being an independent action does not depend upon the outcome of the plaintiff’s claim. If the plaintiff’s case is dismissed, stayed or discontinued, the counter-claim may nevertheless be proceeded with.”

The sheath anchor of the Appellant is that the failure of the Respondents to comply with the conditions precedent relating to service of requisite Quit Notice and Notice of Owners Intention to Recover Possession of the premises occupied by the Appellant, on the Appellant by the Respondents is a violent breach of conditions laid down in Section 7 of the Recovery of Premises Act (Abuja) LFN 1990.
To the Appellant lack of service of the said Notices renders the Respondents’ Counter-Claim incompetent and made the lower Court to render a null decision on the Counter-Claim.
I have already laid out the Counter-Claim in the course of this judgment.
Section 7 of the said Recovery of Premises Act provides:
“7. When and so soon as the term or interest of the tenant of any premises, held by him at will or for any term either with or without being liable to the payment of any rent, ends or is duly determined by a written notice to quit as in Form B, C or D, whichever is applicable to the case, or is otherwise duly determined, and the tenant, or, if the tenant does not actually occupy the premises or only occupies a part thereof, a person by whom the premises or any part thereof is actually occupied, neglects or refuses to quit and deliver up possession of the premises or of such part thereof respectively, the landlord of the premises or his agent may cause the person so neglecting or refusing to quit and deliver up possession to be served, in the manner hereinafter mentioned, with a written notice, as in Form E signed by the landlord or his agent, of the landlord’s intention to proceed to recover possession on a date not less than seven days from the date of service of the notice.”
The above Section 7 must be read along with Sections 8, 9 and 10 of the said Act. They provide as follows:-
“8(1) Where there is no express stipulation as to the notice to be given by either party to determine the tenancy, the following periods of time shall be given-
(a) in the case of a tenancy at will or a weekly tenancy, a week’s notice;
(b) in the case of a monthly tenancy, a month’s notice;
(c) in the case of a quarterly tenancy, a quarter’s notice;
(d) subject to Subsection (2) of this Section in the case of a yearly tenancy, half a year’s notice:
(2) In the case of a yearly tenancy the tenancy shall not expire before the time when any crops growing on the land, the subject of the tenancy, would in the ordinary course be taken, gathered, or reaped if such crops were crops which are normally reaped within one year of planting and such planting was done by the tenant prior to the giving of the notice.
(3) The nature of a tenancy shall, in the absence of any evidence to the contrary, be determined by reference to the time when the rent is paid or demanded.
9. Notices referred to in Section 8 of this Act may be given at any time prior to the date of termination of the current terms of tenancies, but they shall not be effective if the time between the giving of the notice and the time when the tenancy is to be determined is less than the respective periods set out in Section 8 of this Act.”
“10(1) On the expiration of the time stated in a notice of the landlord’s intention to recover possession, if the tenant or any person holding or claiming by, through or under him, neglects or refuses to quit and deliver up possession accordingly, the landlord may apply, according to whether he is taking action in the High Court or a magistrate’s Court, for the issue of a writ or enter a plaint, as in Form F, at his option either against the tenant or Form F, against the person so neglecting or refusing, in the Court of the division or district, as the case may be, in which the premises are situate for the recovery of the premises and thereupon a summons as in Form G shall issue to such tenant or person so Form O neglecting.
(2) If mesne profits are claimed and the writ or plaint shows that the rate at which the mesne profits are claimed is the same as the rent of the premises, judgment shall be entered for the ascertained amount as a liquidated claim and if mesne profits are claimed at the rate of the rent up to the time of obtaining possession the judgment shall be extended to include that claim and shall be as in the second alternative in Form J.”

The law is settled beyond peradventure that in the interpretation or construction of any law, subsidiary legislation, instrument, Legal Rules of Court, the statute or law or the document being construed must be given their ordinary grammatical meanings in order to do justice to the parties involved and to respect the real meaning of the law and the intendment of the makers of the law or document which calls for interpretation. The relevant sections or provisions of the law being interpreted must be read as a whole in order not to defeat the purpose or the obvious ends the law is designed to serve particularly when the words of the statute or legislation being construed is clear and unambiguous. See:-
1. PDP VS HON. (DR) HARRY N. ORANEZI & ORS (2018) 7 NWLR (PART 1618) 245 at 257 H TO 258A per M. D. MUHAMMAD, JSC who said:-
“Now, a cardinal principle of interpretation we must not forget, which learned appellant’s counsel however seems to ignore, is that provisions of a statute, an instrument or indeed pleadings should not be read in isolation of the other parts of the statute, instrument or pleadings. In order to determine the intendment of the makers of the statute, instrument or pleadings, same should be read as a whole. Thus a clause in any of these must be construed together and with reference to the context and other clauses in the statute, instrument or pleadings in ensuring the discovery of a consistent meaning of the whole, here, the pleading being considered. See Oyeyemi whole, here, the pleading being considered. See Oyeyemi v. Commissioner for Local Government (Kwara State) (1992) 2 SCNJ 266 at 280; (1992) 2 NWLR (Pt. 226) 661 and Astra Industry Nigeria Limited v. NBCI (1998) 3 SCNJ 97 at 115; (1998) 4 NWLR (Pt. 546) 357.”
2. WADATA ISAH V THE STATE (2018) 8 NWLR (PART 1621) 346 AT 361 B – C per BAGE, JSC who said:-
“The totality of the evidence presented in this case leaves this Court with little or no room to arrive at a different conclusion with the trial and lower Court. This stems from the fact that the duty of Court, is to interpret the statute in accordance with the intention of the lawmakers.
In ugwu v Ararume (2007) 12 NWLR (Pt. 1048) 367 at 498 paras. A-B this Court stated thus:-
“A statute, it is always said, is “the will of the legislature” and any document which is presented to it as a statute is an authentic expression of the legislative will.
The function of the Court is to interpret that document according to the intent of those who made it. Thus, the Court declares the intention of the legislature.”
I am of the firm view that reading the Recovery of Premises Act as a whole particularly Sections 8, 9 and 10 thereof there is nothing in it preventing or restricting a Landlord from approaching the Court in respect of the Tenancy Agreement between him and his Tenant but whether the Plaintiff, as in this case the Counter-Claimant herein will be able to establish his case as a Plaintiff is another matter particularly when the Counter-Claimant is seeking for the Court’s decision whether the Plaintiff’s Tenancy has come to an end by effluxion of time and whether the Appellant should be made to pay mense profit if relief 1 succeeds. The Counter-Claimant also claimed for an order of Court that the Appellant should repair the demised property and deliver up possession of the premises. All these are within the jurisdiction of the lower Court. What is more relief (e) on the Counter-Claim was seeking general damages for breach of contract, which in effect means that it was the Tenancy Agreement which necessarily called for interpretation on the rights and obligations of the parties to this appeal.
More importantly, the High Court of the Federal Capital Territory has jurisdiction to entertain the Counter-Claim pursuant to Section 257 of the Constitution of the Federal Republic of Nigeria 1999 as amended which provides as follows:-
“257. (1) Subject to the provisions of Section 251 and any other provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of the Federal Capital Territory, Abuja shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.
(2) The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of the Federal Capital Territory, Abuja and those which are brought before the High Court of the Federal Capital Territory, Abuja to be dealt with by the Court in the exercise of its appellate or supervisory jurisdiction.”
I am of the firm view that the lower Court properly exercised its discretion allowing the Respondents to set up the Counter-Claim and was right in adjudicating upon the Counter-Claim. The Preliminary Objection of the Appellant was rightly dismissed.

Issue 1 is resolved against the Appellant.

ISSUES 2 AND 3
Issue 2 is as to whether the lower Court was right to enter judgment for the Respondents to recover possession without service of Statutory Notice while issue 3 is as to whether the lower Court was right in its decision that Appellant’s tenancy had expired and it was not necessary to serve a quit notice before Respondents could take possession of the premises the tenancy of which is in dispute.

The central focus is that the lower Court must be wrong in view of the fact that the DW2 stated that he served the Appellant Quit Notice two times as per Exhibits 3 and DD2. The Appellant also held on to the provisions of Section 7 of the Recovery of Premises Act that it is mandatory for Respondents to serve notices as prescribed in Section 7 of the said Act.

To the Respondents, there is an express clause in the Tenancy Agreement Exhibit 1 waiving the need to serve the Appellant six months’ Notice being a yearly Tenant and that the parties have by the Tenancy Agreement Exhibit I, Clause 4(1) thereof agreed to serve 60 days’ Notice only instead of six months’ Notice or Notice of Owners Intention to recover the apartment occupied by the Appellant.

Clause 4(1) of the Tenancy Agreement Exhibit 1, provides:-
“4. PROVIDED ALWAYS AND IT IS HEREBY MUTUALLY AGREED AS FOLLOWS:
I. That if any covenant on the part of the Tenant herein contained shall not be performed then and in any of the said cases it shall be lawful for the Landlord at any time thereafter to re-enter upon the property or any part thereof upon giving 60 Days written notice and thereupon this Tenancy shall absolutely be re-determined, but without prejudice to the right of action of the Landlord in respect of any breach of the covenants on the part of the Tenant herein contained.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

There is no dispute that the Appellant was served two separate Notices Exhibits 3 dated 16/1/2012 and Exhibit 4 dated 18/4/2012 signed by the 1st Respondent.
The said Exhibits 3 and 4 read as follows:-
Exh. 3
“Nigeria Re-Insurance Plaza (Basement Area), Plot 784A, Herbert Macaulay Way Central Business District, P.O Box 5119, Garki, Abuja- Nigeria
16th January, 2012
Mr. Ameach Cyprian Adimegwu
ADT Universal Resources Ltd
25 Iga Idungaran Street
Idumota, Lagos
Dear Sir
Tenancy_ Agreement of 1st July, 2011 to 31st June, 2012 and Notice of Termination of Tenancy
I hereby attach a copy of the Tenancy Agreement on House No. 9 Princess Terrace, 25 Ndjamena Crescent, Wuse 2, Abuja, sign between your good self and Ebisu Investment Nigeria Limited on 1st July, 2011. I also attach herewith a copy of the receipt for payment of the sum of N3,000,000 (Three Million Naira only) which you made for the period of the tenancy which expires on 31st June, 2012.
You will recall that I had earlier on mentioned to you that the tenancy on the above property will be terminated by the end of the prevailing Tenancy Agreement. I am writing to remind you on this matter so you can make necessary arrangements to vacate the property at the end of the prevailing agreement, that is, by 31st June, 2012. Please take note of sections of the present Tenancy Agreement concerned with your obligations, especially Section 2, nos. ii, iii, v, xi, and xii that deal directly with some substantive issues concerning your obligations by the termination of the tenancy.
I seize this opportunity to express my appreciation of the cordial relationship during the period of your tenancy in the above property.
Thank
Sgd.
Dr. Julius Bala
Chairman”
Exh. 4
“Nigeria Re-Insurance Plaza (Basement Area), Plot 784A, Herbert Macaulay Way Central Business District, P.O Box 5119, Garki, Abuja- Nigeria
18th April, 2012
Mr. Ameach Cyprian Adimegwu
ADZ Universal Resources Ltd
25 Iga Idungaran Street
Idumota, Lagos
Dear Sir
Re; Tenancy Agreement of 1st July, 2011 to 31st June, 2012/Notice of Termination of Tenance
Reference the letter to you of 16th January, 2012 on the above subject matter. A copy of the letter is hereby attached.

You will recall that a major content of that letter is the notice given on the termination of your tenancy on the property – House No. 9 Princess Terrace, at 25 Ndjamena Crescent, Wuse 2, Abuja, and the request that you make all necessary arrangements to vacate the property on or before 31st June, 2012.
I write to inform you know that arrangements have reached advanced stage for the occupation of the property by a new tenant from the 1st July, 2012, in line with the attached letter from Clusters Property and Facility Management Co. Ltd. You are therefore requested to make all arrangement to vacate the property by 31st June, 2012, which is the date on which your present tenancy on the property expires.
Furthermore, we request you ensure that you abide with all your obligations as in Tenancy Agreement signed between us on 1st July 2011. We specifically draw your to Paragraph 2, Roman Numerals, iii; iv; v; ix; and especially xi, which states that “At the expiration or sooner determination of the tenancy, the Tenant shall reinstate the Demised Premises to the state in which it was at the commencement of the term hereby created”. Also take particular note of Para 2, No. xiii, which states that “At the expiration or sooner determination of the term hereby granted to peacefully yield up possession of the Demised Premises to the Landlord, with all the additions thereto (except the Tenant’s fixtures in good and tenable conditions, fair wear and tear excepted”. Furthermore, please take particular note of Para 2, No iii, which states that the Tenant is “To pay and discharge all electricity water and telephone bills which are or may hereafter be assessed, charged or imposed upon or payable in respect of the Demised Premises which are incurred by the Tenant during the term hereby granted.”
You will recall that the process leading to your occupying the property and your stay throughout the three years period of your tenancy has been cordial and mutually beneficially. We are bringing to your attention the above issues in respect of the termination of the tenancy agreement so that the process towards you vacating the property will also be cordial and in the mutual interest of all.
I will highly appreciate that you formally respond to this letter, at the earliest possible time, on the arrangements you are making towards vacating the property, on or before 31st June, 2012.
Thank
Sgd.
Dr. Julius Bala
Chairman
cc.
1. Mr. Oke Abisoye
Clusters Property Facility Management Co. Ltd 2. D. D. Dodo Co, Legal Practitioners Arbitrators.”

It is true the parties had by Exhibit 1 Clause 4 expressly agreed to 60 days’ Notice of Termination of the Tenancy Agreement.

Clause 4 of Exhibit 1 represents the agreement as to length of Notice to be given to the Tenant (Appellant) to bring the tenancy to an end.

In the template of the law of contract, the law is trite that the parties are strictly bound by the terms and condition or stipulations in the contract or agreement freely entered into by the parties to the contract or agreement. The Court is under a duty to examine and interpret the documents forming the nucleus or fountain of the contract together with correspondences that exchanged between the parties. This will enable the Court discern whether there is a contract that is enforceable between the parties. The Court cannot rewrite the contract for the parties. The rights and obligations of the parties must be discovered from the contract if any emanating between the parties. See GABRIEL ADEKUNLE OGUNDEPO & ANOR VS THOMAS ENIYAN OLUMESAN (2011) 8 NWLR (PART1278) 54 AT 70 C D per FABIYI, JSC who held:
“I need to still point out at this stage that it is not the business or a Court to re-write parties contract for them. The duty of the Court is to interpret the contract as contained in the instrument made by the parties on their own free volition. A Court or record should never accede to the importation of unrelated ‘grey’ areas of the law by a party to prop what is not contained in the instrument made by the parties. See Jadesimi v. Egbe (2003) 10 NWLR (Pt. 827) 1 at 30, Isiyaku v. Zwingina (2003) 6 NWLR (Pt. 817) 560 at 576.”

As stated earlier there is no doubt that instead of six months a yearly tenant should be entitled under the Recovery of Premises Act the parties decided to utilize Section 8 of the said Act to reduce the length of time or notice to give the Appellant to 60 days.
I am of the settled view that since the Appellant was not ready to abide by the agreement freely entered to by the parties, it behoved the Respondents to serve the Appellant with seven (7) days notice of Owner Intention to recover possession, the Appellant having by his failure to heed the 60 days Notice as agreed, because the law does not permit a Landlord to vi et armis or by force enter or recover possession of the premises in the possession of the Appellant. There must be due process of law. This would have been fulfilled if the Respondents had served the 7 days Notice of Owners Intention to Recover possession on the Appellant. That is the very essence of Section 7 of the Recovery of Premises Act stating that when there is a default on the part of Tenant to yield up possession of the property upon service of Notice to Quit as in Form B, C or D then Form E (Notice of Owners Intention to recover possession) must be served notwithstanding the stipulation in Clause 4 of Exhibit 1 limiting the length of Notice to determine Appellant’s Tenancy to 60 days. Failure to quit accordingly must attract the service of Form E or seven (7) days Notice as aforesaid in line with due process before possession could be ordered by the Court upon proof of service of the seven days notice. See
1. CHEMIRON INTERNATIONAL LTD vs STABILINI VISIONI LTD (2018) 17 NWLR (PART 1647) 62 AT 77 C – F per PETER-ODILI, JSC who said:-
“Of note also is that the tenancy of the appellant was for a certain term of three (3) years and by virtue of Section 7 of the Recovery of Premises Law Cap. 118, Laws of Lagos State, 1973 there was no necessity to serve a notice to quit before initiating a recovery of premises action when the tenancy as in the case at hand is for a term that is certain. For effect, I shall quote the said Section 7 thus:- Section 7 of the Recovery of Premises Law, CAP 118, Laws of Lagos State 1973 (“the RPL”) provides that:-
“When and as soon as the term or interest of the tenant of any premises determines or has been duly determined by a written notice to quit as in Form B, C or D, in Schedule 1 to this Law, such tenant or if such tenant does not actually occupy the premises or only a part thereof is actually occupied, neglects or refuses to quit and deliver up possession of the premises or any part thereof, the landlord of the said premises or his agent may cause the person on neglecting or refusing to quit and deliver up possession to be served with a written notice as in form E signed by the landlord or his agent of the landlord’s intention to proceed to recover possession on a date not less than seven days from the date of service of the notice.”
From the said provision all the respondent needed to provide was service of seven days to the appellant and that was done. That position was affirmed by this Court in the case of Iheanacho v. Uzochukwu (1997) 2 NWLR (Pt. 487) 257-270.”
(Underlined mine)
2. MRS GRACE CHIADI & ANOR VS MISS OPUINE AGGO & ORS (2018) 2 NWLR (PART 1603) 175 AT 219 H – 220 A-C per AKA’AHS, JSC who said:-
“Although the lease over the property was no longer subsisting since it was not renewed after the expiration of the term on 30 April, 1971, the lessee became a tenant at sufferance and was liable for use and occupation of the land but who could rely upon his possession of the land against the whole world until the lessor recovered possession from him in the manner authorised by law. As explained by Nnaemeka-Agu, JSC in Ude v. Nwara supra at page 660, paras. G-H –
“While the appellant was authorised by statute to stay on, there is yet another right at common law which then enured to him after the expiration of the statutory period of three months, that is that of a tenant at sufferance. As a lessee whose term of lease had expired but who held over and remained in possession without the landlord’s assent or dissent (for which See: Remon v. City of London Real Property Limited (1921) I K. B. 49, 50) he became a tenant at sufferance, having come upon the land lawfully in the first place. This is categorized as a leasehold, even though there was no longer a grant. See Megarry Wade – The Law of Real Property 4th Edn) pp. 44 -45: 640. See also Vol. 123 Halsbury’s Laws of England (3rd Edn.) p. 509. It arises not by grant but by operation of law: See Meye v. Electric Transmission Limited (1942) Ch. 290”.
As the proviso to Section 10 of the State Lands Law gives the lessee whose lease has expired a statutory right to remain in possession, the only means by which the lessor can recover possession as provided under Section 28 of the Law is to enter a suit in the High Court to recover possession since the law has prescribed the method of exercising the statutory power of recovering possession, other methods of exercise of the power are excluded; so there can be no question of the lessor recovering possession by resorting to a right of re-entry or any other type of self-help.” (Underlined mine)
3. BARR. (NZE) L. I. MUONANU VS MRS LAZARUS NWAEMELU (2021) 3 NWLR (PART 1763) 216 AT 236 per UGO, JCA who said:-
“It is only upon service of that statutory notice of owners intention to recover possession that the 1976 Law of Lagos State by its Section 18 permits the landlord to apply for a writ or plaint, called Form F, against the tenant for possession. That point was brought out in all the said cases and particularly by Esc, J.S.C., in his lead judgment in Oduye v. Nigeria Airways Ltd. (1987) 4 SC 143 at 161-163; (198) LPELR-2264 p. 26-27, (1987) 2 NWLR (Pt. 55) 126 thus:
“The whole tenor of the Edict (Lagos State Rent Control and Recovery of Premises Edict 1976) is to create a new tenancy – a Statutory Tenancy unknown to Common Law, which Tenancy is to be protected and the recovery of premises from such statutory tenants to be restricted, indeed, only be done by compliance with the necessary formalities. There are such formalities as Notice to tenant of Owners Intention to Recover Possession – see Form E – to be followed by Writ or Plaint against Tenant or Person Refusing to Deliver up Possession – See Form F.”
I am not unmindful of the reliance placed on the recent decision of the Supreme Court in the case of PILLARS NIG. LTD VS DESBORDES & ANOR (2021) LPELR – 55200 (SC) by the Respondent as a platform to contend that there was no need to serve the Notice of Owners Intention to recover possession even if there is irregularity and that it is not fatal to the Respondents case.
The said case is also reported as PILLARS NIG LTD VS DESBORDES (2021) 12 NWLR (PART 1789) 122. I have read the case, and I am of the solemn view that the issue of proper or improper service of Notices was not decided in the case because there was no ground of appeal to support the complaint of the Appellant. See pages 137 – 142 of the report.
The case here is not about irregularity in the service of Notice to Quit or Notice of Owners Intention to recover possession. There was no service of owner’s intention to recover possession in this appeal. The lower Court ought not to have ordered possession of the premises notwithstanding that the lower Court was right in holding that the Tenancy has expired. The only thing lacking and which makes the decision on recovery of possession faulty is the absence of service of 7 days Notice of Owners Intention to recover possession on the Appellant. Issue 2 is resolved against the Respondents in favour of Appellant while issue 3 is resolved against the Appellant in favour of the Respondents to the extent that the Tenancy had come to an end.

Let me deal with issues 4 and 5 together.

Issue 4 has to do with whether the Respondents desire to rent the demised premises to another prospective tenant who was willing to pay a higher rent is one of the recognized grounds for recovery of premises by a Landlord (the Respondents) from their tenant (Appellant). The Learned Counsel to the Appellant submitted that that is not one of the grounds legally recognized for recovery of premises. That the sole reason for seeking to recover the premises from the Appellant was a desire to let the premises to another tenant who was willing to pay higher rent and that the Respondents were not entitled to recover the premises from the Appellant on that account. That the initial reason given by the Respondents was that 1st Respondent wished to give the apartment to his children before he changed via correspondences to the effect that Respondents motive was to wrestle the property from Appellant and give it to higher rent paying tenant. That the trial Court saw nothing wrong with the Respondents’ reasons. He drew attention to the findings of the trial Judge on pages 281 – 282 of the record of appeal which the Learned Counsel to the Appellant argued contradicted Clause 2(XIV) of the Tenancy Agreement Exhibit 1. That a Landlord who seeks possession must establish one or more grounds recognized by law and once the factors are absent the Court will not order yielding up of possession by the Tenant. He cited the cases COKER V ADETAYO (1996) 6 NWLR (PT. 454) 264 and ONABOLU V ETUK (1961) LPELR 120. He drew attention to Exhibit 4 paragraph 3 thereof as the reason the Respondents gave for seeking possession of the premises from Appellant.

That the Appellant is not disputing the Landlord title or ownership of the property but that he approached the Court for protection of his right as a Tenant from commercial oriented Landlords like the Respondents.

He submitted that the Respondents were obviously out to overreach the Plaintiff by wrestling possession from him for the sole purpose of renting same to another person. That the Landlord has not shown that he was acting in good faith. He relied on the case of BREEDY V KHALIFE (1952) 20 NLR 91 AT 92.

On issue 5 as to whether the judgment of the lower Court is not at variance with the evidence and whether the Appellant did not discharge the evidential burden on him to be entitled to judgment, the Learned Counsel to the Appellant argued that the Respondents have an obligation to allow the Appellant option of renewing the tenancy at the expiration of the current term and that their refusal to allow the Appellant the opportunity of renewing the tenancy and wrestling possession from him with a view to renting the apartment to higher rent paying Tenant is a breach of the express and implied terms of the Tenancy Agreement. He again relied on Clause 2(XIV) of the Tenancy Agreement to submit that Appellant ought to be given option to renew the tenancy.

That the Respondents decided to rent the property for N4.5 Million for two years as shown in Exhibit 5, a letter which he said is from Cluster Property and Facility Management Company which the Respondents attached to their letter of 18/4/2012 Exhibit 4 to the Appellant. That the lower Court disregarded this clear provision of the Tenancy Agreement in coming to the conclusion that Appellant wanted to compel the Respondents to review his tenancy ‘by fire by thunder’ on pages 281 – 282 of the record. That Appellant offered to renew the Tenancy but was turned down by Respondents obviously, according to him, because another tenant had made higher offer. The Learned Counsel to the Appellant relied on paragraphs 7 – 11 of Appellant’s Amended Statement of Claim which she said the Respondents did not deny.

That the DW1 confirmed under cross-examination that Appellant made oral offer to review his tenancy agreement which the Respondents refused.

He stated that from the evidence the Appellant was a good Tenant even though he owed the Facility Managers Service Charges which he later paid up. That by Exhibit 3 last paragraph, the Respondents acknowledge the cordial relationship with the Appellant.

That the Respondents were unable to prove their callous and damaging assertion that the Appellant issued them a dud cheque. That there was no cheque returned to the Appellant and that DW1 was not a witness of truth.

That following the refusal of Respondents to allow the Appellant to review his tenancy they mounted ‘TO LET’ sign on the demised premises before the expiration of the Appellant’s Tenancy and as a result of the sign post prospective Tenants came knowing and making enquiries at Appellant’s apartment. Learned Counsel to the Appellant stated, this clearly breached to the Appellant’s right to peaceful enjoyment of the demised apartment. That this is clear breach of Exhibit 1. Clause 3(i) of the Tenancy Agreement which guaranteed undisturbed possession by Respondents or anyone acting for them.

That the lower Court erroneously bought the Respondents argument that he (Appellant) was not in a position to prove that the ‘TO LET’ signboard was meant for his apartment. That the letter Exhibit 5 indicated that Respondents wanted Appellant out of the premises. He relied on the principle of law that he who asserts must prove. 

He relied on the case of NEWBREED ORGANISATION LTD V ERHOMOSELE (2006) 16 WRN 1 and Section 131 of the Evidence Act. Learned Counsel to the Appellant opined that the Respondents did not deny crucial facts put forward by the Appellant showing that Respondents wanted to wrestle possession from him or on the fact that he was denied the option to renew. He relied on DW1’s evidence who according to the Appellant’s learned Counsel admitted that they refused Appellant’s option to renew his tenancy. He relied on the case of N.A.S. V UBA PLC (2005) 38 WRI. She urged the Court to so hold.

On issue 4, the Learned Counsel to the Respondents contended that the Appellant argued without success that Respondents sought to recover possession because Respondents wished to give the property to a tenant with higher rent. That the Appellant’s argument is baseless in that the Appellant was guilty of breach of covenants and holding over of rent which he said has occasioned hardship to the Respondents and his fellow tenants.

That there is no denying the fact that Clause XI of the Agreement on page 175 of the record provided for option to renew but on conditions to be fulfilled as reserved in the agreement. He relied on the case of OTERI HOLDINGS LTD VS HERITAGE BANKING CO LTD (2020) LPELR – 50802.

Learned Counsel to the Respondents relied on page 163 of the record of appeal where he said the Appellant conceded to holding over rent and late payment for services even after letters were written to him to do so. He also relied on page 282 whereat he said learned trial Judge recorded the admission of Appellant that he was in arrears of rent and that he defaulted in paying service charges.

Another pedestal for contending that Appellant’s position was baseless was Exhibit 4 written by Respondents to the Appellant on 18/4/2012 contained on page 51 of the record to the effect that the Respondents gave no desire to let the property to new tenant as basis for determining the Tenancy. He made the same submission in respect of Exhibit 3 written on 16/1/12 contained on page 50 of the record of appeal. The learned Counsel to the Respondents stated that Exhibit 3 is a QUIT NOTICE issued by Respondents to the Appellant and that the Quit Notice did not state that the tenancy was being determined in order to give the apartment to a new Tenant as claimed by the Appellant. He submitted that contrary to the Appellant’s submission that the Respondents did not act reasonably, he said the Appellant’s argument is baseless relying on the case of OGAR VS ILOETOMMA (2015) LPELR – 40694. He submitted that in this case the Tenancy was lawfully determined based on the breach and refusal of Appellant to perform his obligations under the agreement. He relied on page 129 paragraph 1 of the record of appeal.

That the Respondents have every right to recover possession from the Appellant as option to renew can only be granted to a tenant who performs his obligations. He relied on the case of CONOIL PLC VS DUTSE (2016) LPELR – 40236. He urged the Court to hold it against the Appellant.

On issue 5 as to whether the judgment is at variance with the evidence adduced, the learned Counsel to the Respondents submitted that the judgment of the lower Court is in tandem with evidence led, as according to him Appellant cannot and must not use the Court as means of enforcing an obligation which he (Appellant) breached and refused to perform.

On the Appellant’s right to renew, the learned Counsel to the Respondents replicated all his arguments under issue 4 and further submitted that the Appellant failed to prove that the ‘TO LET’ signboard used by agent of the Respondents was targeted at Appellant’s apartment. That such allegation must be proved by credible evidence. He relied on the case of ADAMU V ASHAKA CEMENT CO PLC (2015) LPELR – 25610.

That an offer to renew for option to renew by a tenant is nothing but an offer which is at the discretion of the landlord, relying on EZENWA V OKO & ORS (2008) LPELR – 1206. He concluded that the lower Court rightly entered judgment in Respondents’ favour.

In his Appellant’s Reply Brief in respect of issue 4, the learned Counsel to the Appellant stated that the Appellant’s tenancy was still running when this suit commenced and as such issue of holding over was not in contemplation. That the Tenancy expired while the matter was still pending in Court.

That the case of OGAR V ILOETOMMA (2015) LPELR – 40694 cited by Respondents rather supports Appellant’s case that the premises ought to have been recovered in accordance with the law.
​RESOLUTION OF ISSUES 4 AND 5
Issue 4 complains that it was because the Respondents wished to give the rented apartment to a prospective tenant wishing to pay higher rent that led to the dispute. Appellant contended that Respondents could not obtain possession on the ground that another person offered higher rent. Issue 5 complained that the judgment of the lower Court is against the weight of evidence and if this Court finds so, the next thing to decide is whether Appellant has not discharged evidential burden on him to entitle him to judgment.

The fact remains that both the Appellant and the Respondents cannot make out any case outside the penumbra of the agreement or contractual relationship between them concerning the tenancy agreement and other relevant documents that exchanged between them.

There is no law that prevents a landlord from letting his property to a prospective tenant who is willing to pay higher rent if it is done within the confines of the law. Again what the law enjoins him to do where there is a tenant in the premises he seeks to let to another tenant for whatever reason, is for the landlord to bring to an end the existing tenancy agreement between him (Landlord) and the Tenant occupying the premises, in accordance with the tenancy agreement and as stipulated by law. A tenant cannot dictate to Landlord who to give his property to occupy as a tenant. The question sought for is desideratum as issue 4 is an academic question and that is of no benefit to the Appellant or of any utilitarian value. The issue is a decoy away from the real question in controversy here which is whether the Landlord was not bound to serve the Appellant at least 7 days Notice of Owners Intention to Recover Possession of the demised premises.

This issue 4 was tied to Clause 2(XIV) of the Tenancy Agreement Exh. 1 which provides:-
“xiv. At the expiration of the term granted, the Tenant has the option of renewal of the tenancy for another term, at a rent to be mutually agreed upon by the parties.”
(Underlined mine)

​The evidence on record shows that Appellant made oral offer to exercise the option to renew his tenancy with the Respondents. The Respondents refused on the ground that the Appellant had become a bad tenant who was in arrears of rent and service charges. The Appellant admitted the allegation and the lower Court justifiably found so. But the Appellant persisted that he was entitled to be given first option to renew the tenancy of the premises he occupied.
In all of these, the Appellant has not proved that the Respondents had accepted his offer to renew the tenancy. I have to consider the various document tendered in order to resolve the dispute as to whether there is a valid contract between the Appellant and the Respondents as required by law and Clause 2(xiv) of Exhibit 1, the Tenancy Agreement, but there is no contract to renew the tenancy agreement. In the absence of such a fresh contract between the parties, this Court cannot decree any relief in respect of option to renew the tenancy in favour of the Appellant. The Court cannot make contract for the parties neither can the Court force any of the parties to enter into option of a renewal of the previous contract which has become spent. See:
1. B. O. LEWIS V UNITED BANK FOR AFRICA PLC (2016) 6 NWLR (PART 1508) 329 AT 344H – 345 A – E per PETER-ODILI, JSC who said:-
“The case of Shell B. P. Petroleum Development Company v. Jammal Engineering (Nig) Ltd. (1974) 4 SC 33 at 72, cited by appellant a judgment of the Supreme Court per Coker JSC did not offer any assistance to the appellant as he wanted, rather, the authority supports the respondent’s position. I shall quote it for effect and that is:
In Shell B.P. Petroleum Development Company v. Jammal Engineering (Nig.) Ltd. (1974) 4 SC 33 at 72, the Supreme Court per Coker, JSC observed:
“The final exercise of judgment must of necessity involve a consideration of all the correspondence tendered in order to establish the case and all that was produced in order to disprove the existence of the contract. It is only after such detailed consideration that a Tribunal can fairly come to a conclusion as to whether or not the parties actually arrived at an agreement – See Thomas Hussey v. Horne – Payne (1879) 4 App. Cas. 311. The task of analyzing the several letters and attempts to reconcile the one with the other is undoubtedly a very difficult one calling for the most serious examination of each and everyone of several documents until whether the Tribunal is able to say that indeed a contract has been established.”
It is evident in the final analysis that the parties being bound by the contract they entered into which herein is Exhibit B, the terms and conditions must be respected by Court and so this issue is resolved in favour of the respondent and against the appellant.”
2. P. O. MEKWUNYE V W.A.E.C. (2020) 6 NWLR (PART 1719) 1 AT 31 B – F per PETER-ODILI, JSC who said:-
“This instant case has brought up the question whether or not what transpired between the parties is a contract and so what brings about the formation of a contract is to be considered to see if the qualities necessary in a contract are at play here. To constitute a binding contract between parties there must be a meeting of the mind which is referred to as “consensus ad idem” which mutual consent relates to an offer and acceptance. The definition of an offer in my humble view is the expression by a party of readiness to contract on the terms specified by him which if accepted by the offeree gives rise to a binding contract. The maturation to a contract happens where the offeree signifies a clear and unequivocal intention to accept the offer. In fuller expatiation, in order to establish that the parties have formed a contract, there must be evidence of consensus ad idem between them. If there is a stipulated mode for acceptance of the offer, the offeree has a duty to comply with same and no less. See Bilante Int’l Ltd v. NDIC (2011) 15 NWLR (Pt. 1270) 407; Afolabi v. Polymera Industries (1967) 1 All NLR 14, (1967) SCNLR 256.
There is no such acceptance from the Respondents of option to renew the Tenancy Agreement for the Appellant. The Respondents rejected the offer made by Appellant to renew the tenancy.
The clause relied upon makes it clear that the option of renewal of the tenancy for another term will be “at a rent to be mutually agreed upon by the parties.”
By the reliefs sought by the Appellant at the lower Court particularly reliefs i, ii, iii and iv thereof (already reproduced) the Appellant was and is inviting the Court to make contract in respect of the demise premises for the parties especially in his own favour. The reliefs sought have taken the option to renew out of the precincts of mutuality stipulated in Clause 2(xiv) of Exhibit 1 the tenancy agreement that has expired. The Court cannot rewrite contract for the parties. The Respondents are absolutely entitled to refuse to renew the tenancy for another term with the Appellant moreso that Appellant has defaulted in complying with the erstwhile agreement with respect to rent and service charge. Appellant cannot force himself upon his Landlord. See BENJAMIN ONWUGHAMBA EZENWA VS OKPARA OKO & ORS (2008) 3 NWLR (PART 1075) 610 AT PAGE 628 D where ONNOGHEN, JSC (later CJN Rtd) said:-
“It is also settled law that the onus is on the person who seeks to enforce his right under a contract to show that he has fulfilled all the conditions precedent, and that he has performed all those terms which ought to have been performed by him. Where the plaintiff fails or defaults in the discharge of his own obligations under the contract, the action must fail – See Balogun v. Ali-owe (2000) 3 NWLR (Pt.649) 477 and Ezenwa v. Ekong (1999) 11 NWLR (Pt. 625) 55.”
And on page 629 E- H to 630 A, his Lordship said:-
“We have to bear in mind that the principles of specific performance relate to enforcement of contract entered into between the parties and that a contract involves offer and acceptance of the offer coupled with provision of consideration. One may ask in relation to this case, what is the contract that appellant wants the Court to specifically enforce? There is only one lease agreement between the parties which lease expired by effluxion of time. With that expiration, any rights arising therefrom became spent or non-existent and consequently unenforceable or is the appellant talking of the option to renew as constituting the contract he wants specifically enforced? If so is an option to renew a lease a contract enforceable by specific performance, particularly where there is no provision in the lease to the effect that the lease is renewable in perpetuity or that the landlord or lessor shall not withhold consent to renew the lease? Even where there is a provision that the lessor shall not unreasonably withhold consent to renew the lease, it still leaves the lessor with the discretion either to renew or not to renew the lease, how much more where there is no such provision and the lessor refuses, as in the instant case to renew the lease. Is he bound to renew the lease?
If the option to renew is considered, the contract to be enforced, where is the acceptance of that offer by the lessor 1st respondent, and what, if one may ask, is the consideration so as to make the alleged contract binding and enforceable? I am unable to see the basic constituents of a valid contract existing between appellant and 1st respondent and by extension 3rd respondent which can be said to be amenable to specific performance having regard to the fact that the only valid contract between them had expired without renewal. It is on the above basis that one has to agree with the lower Court that “the appellant’s option to renewal had ceased to be and there was not for that reason a cause of action.” (Underlined mine)
Finally, on page 631 of the Report his Lordship said:
“I hold the considered view that an option to renew a lease is an offer made to the landlord, the acceptance of which would constitute a valid contract enforceable by specific performance; it remains an offer until accepted. In the instant case, it was never accepted by the 1st respondent so no enforceable contract exists. I therefore resolve the issue against the appellant.”

Exhibit 4 relied upon also by the Appellant is of no moment as the letter was in the main reminding the Appellant that his tenancy was coming to an end. Issue 4 is resolved against the Appellant.

On issue 5 as to whether the judgment is at variance with the evidence, I am of the solemn view that there is no such disparity between the judgment and the evidence led. All the points complained about in issue 5 were adequately addressed by the lower Court and the findings made are in tandem with oral and documentary evidence before the lower Court. The Appellant actually failed to discharge the evidential burden on him to be entitled to judgment.

Issues 5 is also resolved against the Appellant.

In the result, the appeal succeed in part only in respect of issues 2 and 3 dealing with failure to serve seven (7) days Notice of Owners Intention to recover possession on the Appellant.

The appeal is dismissed in respect of issues 1, 4 and 5 of the issues distilled for determination by the Appellant.

For avoidance of doubt, the dismissal of the Appellant’s suit together with the reliefs sought by him is HEREBY AFFIRMED.

I also affirm the judgment of the lower Court given in favour of the Counter-Claimants in respect of the following reliefs which are as follows:-
1. It is declared that the plaintiff’s tenancy has come to an end.
3. The plaintiff is ordered to pay the defendant the sum of N250, 000 (two hundred and fifty thousand) for each month outside the tenancy agreement that the plaintiff has stayed in the property in question being mesne profit for his continued unauthorized stay on the property.
4. The plaintiff is hereby ordered to restore the property to its initial condition (Prior to the commencement of the tenancy agreement)
5. Cost for the counter-claim against the plaintiff assessed N20, 000 (Twenty Thousand Naira) Only.

Relief 2 (only) ordering the Plaintiff to deliver vacant possession of House 9 Prince Terrace, 25, Ndjamena Crescent Wuse 2, Abuja to the Defendant/Counter-Claimant IS HEREBY SET ASIDE.
There will be no order as to costs.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I entirely agree with, and do not desire to add to the decision of my learned brother, Peter Olabisi lge, JCA, which has just been rendered having been privileged to read the same in draft.

I adopt the entire decision as mine with nothing more to add.

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DANLAMI ZAMA SENCHI, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother, PETER OLABISI IGE, JCA just delivered and I agree with the finding and conclusion reached therein that this appeal lacks merit and I dismiss it as well.

The judgment of the lower Court in reliefs 1, 3, 4 and 5 in respect of the counter-claim delivered by A. S. Umar J on 1st day of December, 2014 is hereby affirmed. Relief 2 of the counter-claim is hereby refused and it is accordingly set aside.

I make no order as to cost.

Appearances:

LILIAN OJIMMA, ESQ with him DR. MARY ARTHUR For Appellant(s)

FRANCIS ORONSAYE with him MARK CHIDI AGBO For Respondent(s)